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2017 DIGILAW 175 (GUJ)

Pyarelal Badlu v. Ahmedabad Municipal Corporation

2017-01-23

MOHINDER PAL

body2017
JUDGMENT : Mohinder Pal, J. 1. The petitioners, by way of this petition under Article 226 of the Constitution of India, have challenged the legality and validity and non-action on the part of the respondents in finalizing as well as taking further steps pursuance to the preliminary scheme published in the official gazette dated 3.6.1996 by the State Government while exercising powers under section 50 of the Gujarat Town Planning and Urban Development Act, 1976. 2. Brief facts of this case are that the Ahmedabad Municipal Corporation under its General Body Resolution dated 29.1.1985 resolved to vary the Town Planning Scheme No. 15 (Vadaj) under section 71 of G.T.P. & U.D. Act, 1976 and declared its intention to prepare a fresh town planning scheme. On 18.2.1987, Government appointed Town Planning Officer to finalize the said draft scheme under section 50 of the Act. 3. In principle, the land of Town Planning Scheme Revenue Survey No. 592 and 593 belong to one Mr. Suryakumar Jagabhai and others which were renamed as O.P. No. 158, and in lieu of this O.P. No. 158, two final plots viz. 281 and 282 were allotted. It is the claim of the petitioners that the said land bearing Final Plot No. 281 and 282 of Town Planning scheme No. 15 be kept reserved for slum up-gradation by the Town Planning Authority. Finally, the petitioners sought the relief of declaration that the respondent No. 5 be restrained from evicting the petitioners from the land in question on the basis of the decree passed by the Small Causes Court against them. 4. Learned counsel for the petitioners Mr. Joshi has submitted that the original suit filed by respondent No. 5 was not in capacity of the owner as can be seen from the subsequent litigation which was initiated by Suryakant Jagabhai and Lilavatiben in the form of civil suit, wherein, Suryakant Jagabhai and Lilavatiben contended that the respondent No. 5 and the petitioners are trespassers. According to him, it was only in the year 1992 that one parcel of land has been purchased by respondent No. 5. Under the circumstances, it cannot be said that the decree passed against the petitioners was valid. According to him, the intention of town planning scheme was declared on 21.9.1985, which could be seen from para-6 of the affidavit filed by the Town Planning Officer Mr. Prakash Dutta. Mr. Under the circumstances, it cannot be said that the decree passed against the petitioners was valid. According to him, the intention of town planning scheme was declared on 21.9.1985, which could be seen from para-6 of the affidavit filed by the Town Planning Officer Mr. Prakash Dutta. Mr. Joshi learned counsel has argued that the draft town planning scheme was published on 18.2.1987. The Town Planning Officer has declared his decision under section 51 and 52(1) of the Act on 2.11.1995. It was sent to the state Government on 14.12.1995 and sanctioned on 3.6.1996. That on record of Municipal Corporation and Town Planning Authority, the plots in question were in the ownership of Suryakumar Jagabhai and Lilavatiben. It was only after 1992 that some portion of the land has been purchased by the respondent No. 5. Finally, it has been submitted that the rent proceedings relate to the possession which is a secondary title and once the preliminary title and ownership is lost by the authority, this decree of possession would not survive. 5. On the other hand, Mr. Shah learned counsel appearing for the respondents has submitted that the point regarding ownership has been discussed and finally put to rest by the decision of this court in Civil Revision Application No. 1307 of 1996. Ultimately, today the petitioners before this Court are the persons against whom the decree has been passed in the suit and it has been further affirmed by this Court. Under the circumstances, the petitioners cannot raise the dispute as regarding title or ownership of the property. According to him, the petitioners have tried to revive the matter which has been put to rest by the various courts in the year 1996. Finally, he has prayed for dismissal of this petition. 6. This Court has considered the submissions of both the sides. Before proceeding further, it will be necessary to point out that originally this petition has been filed by 15 petitioners. It is brought to my notice that some of the petitioners have vacated the property which was under their occupation. Even today, learned counsel for the petitioners has argued this petition on behalf of petitioners No. 3,8,9,10,11 and 12, which goes to show that other petitioners have accepted the order of eviction earlier passed against them. 7. The petitioners in this petition have claimed two reliefs. Even today, learned counsel for the petitioners has argued this petition on behalf of petitioners No. 3,8,9,10,11 and 12, which goes to show that other petitioners have accepted the order of eviction earlier passed against them. 7. The petitioners in this petition have claimed two reliefs. In first place, the petitioners are seeking nullity of decree, vide which, their eviction from the plot in question has attained finality by the orders of Small Causes Court, Ahmedabad passed in Suit No. 3387/1981 by directing the present petitioners to hand over the vacant and peaceful possession of the suit premises on or before 31.7.1996. This order of Suit has been further affirmed by this High Court in Civil Revision Application No. 1307 of 1996 decided on 10.9.1996. The second relief claimed by the petitioners in this petition is against the State Government, seeking directions to implement Town Planning Scheme No. 15, wherein, according to the petitioners, the plot occupied by them has been chosen for up-gradation of slum dwellers. 8. It will be relevant to point out here that earlier the suit filed by the petitioners came to be summarily rejected on 22.7.1996, against which, Civil Revision Application was filed under section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. While rejecting the revision application, this court has observed as under: "In view of the above guidelines laid down by the Supreme Court, the Courts below have clearly recorded a finding in the instant case that there exists relationship of landlord and tenant between the parties and, therefore, a decree for possession can be passed against the applicant. Apart from that, in view of the findings recorded by the Courts below that the entire suit property has been purchased by the opponent and others, I am of the opinion that the opponent is having a title and, therefore, I see no merits in the submission of Mr. Thakkar. Mr. Thakkar submitted that the opponent being a Collector or a Rent Receiver is not entitled to get the possession. He has placed reliance on the observation made by this Court in Nanalal Girdharlal and another v. Gulamnabi Jamalbhai Motorwala and ors AIR 1973 Guj 131 . Thakkar. Mr. Thakkar submitted that the opponent being a Collector or a Rent Receiver is not entitled to get the possession. He has placed reliance on the observation made by this Court in Nanalal Girdharlal and another v. Gulamnabi Jamalbhai Motorwala and ors AIR 1973 Guj 131 . The Full Bench of this Court, on considering the question of maintainability of the suit for eviction by the co-owners, has held that a co-owner receives rent on behalf of himself and the other co-owners as also a rent-farmer and a rent-collector and such a co-owner, rent-farmer or rent-collector would be entitled to maintain a suit for recovery of possession of the premises. There cannot be any dispute to the principle laid down in the said judgment. However, in view of the facts stated hereinabove, I am of the view that the facts of the said case were not similar to the facts of this case and therefore the said decision is not applicable to the facts of this case. On the question of relationship of landlord and tenant, there are concurrent findings of facts recorded by both the Courts below and in my opinion which do not require any re-appreciation by this Court. In view of the fact that the entire suit property has been purchased by the opponent, it would further justify his claim for recovery of possession as the owner of the property. Regarding the contention that the suit itself is not maintainable, in view of the fact that the disputed property is kept reserved under the TP Scheme, I am of the opinion that the said contention is not available to the applicant as ultimately it would be a dispute between the opponent and the Corporation. Here, in the instant case, the decree has been passed for possession of the competent court, which has been confirmed by the Appellate Bench and, therefore, that contention is not available to the applicant. In view of this discussion, I see no merit in any of the contentions raised by the applicant. There being no substance in this revision application, it is summarily rejected." 9. This Court has further held that keeping in view the fact that the parties were litigating since 1981, the present petitioners were granted six months time to hand over vacant and peaceful possession to respondent No. 5. There being no substance in this revision application, it is summarily rejected." 9. This Court has further held that keeping in view the fact that the parties were litigating since 1981, the present petitioners were granted six months time to hand over vacant and peaceful possession to respondent No. 5. It is, thereafter that the present petitioners have preferred this petition which has remained pending for twenty years. 10. While arguing on behalf of the petitioners, Mr. Joshi has emphasized on the point that there was litigation between the original land owners i.e. Suryakant Jagabhai and Lilavatiben in the form of civil suit and it was only in the year 1992 that respondent No. 5 purchased one portion of the property in question. 11. The arguments of learned counsel on this point are devoid of any merits. Once the point regarding ownership has been put to rest by the decision of this Court in Civil Revision application No. 1307/1996, the same point cannot be raised at this stage. Otherwise also, the present petitioners cannot take advantage of the dispute of ownership as they claimed themselves to be the tenants and the decree against them has been passed which has attained finality. 12. Learned counsel has also taken up the point of government policy to implement Town Planning Scheme No. 15, and according to him, once the Government has expressed its intention to acquire the land for town planning scheme, the decree against the petitioners for eviction from the plot does not survive. 13. Once again this Court is not in agreement with the arguments of learned counsel. It will be seen that the original land owners has been litigating with the petitioners since 1981. After purchase, respondent No. 5 has stepped into the shoes of the original land owners. Otherwise also, the petitioners being unauthorized occupiers cannot take advantage of dispute between the land owners. This court, while deciding revision application has specifically dealt with this question and has come to the conclusion that the petitioners were liable to be evicted. There is concurrent findings of both the Courts against the petitioners. Under the circumstances, by no stretch of imagination, these petitioners can get relief from this Court asking this Court to set aside the decree which has been passed against the petitioners and affirmed by this court. 14. There is concurrent findings of both the Courts against the petitioners. Under the circumstances, by no stretch of imagination, these petitioners can get relief from this Court asking this Court to set aside the decree which has been passed against the petitioners and affirmed by this court. 14. Under the circumstances, the present petition being vague and devoid of any merits, it is dismissed. Rule is discharged. Interim relief stands vacated. 15. After passing of the above order, learned counsel for the petitioners requested that eviction of the petitioners from the property in question should be stayed for a period of three weeks. This submission has been disputed by the learned counsel for the respondent No. 5. He has further pointed out that it is not known that how many petitioners, out of these, still survive as most of the petitioners have handed over the possession to the respondent No. 5. He has further pointed out that earlier also petitioners have taken time from the Court, however, they failed to evict the premises in question. Under the circumstances, the request is rejected.